New Register of Copyrights: “Unfortunately, I start with enforcement”

Ars sits down with Maria Pallante, the first new head of the US Copyright …

The US hasn't had a new Register of Copyrights since 1994, when Marybeth Peters stepped into the job of top US copyright official. So when Peters stepped down at the end of 2010 and a search geared up for her replacement, interest was high.

The new head of the Copyright Office would enter the job during a chaotic moment for copyright, facing challenges like P2P file-sharing, rising public interest in fair use, mass copyright lawsuits around the country, and a new set of bills in Congress that attempt to make choke off streaming and P2P piracy. No longer was copyright a sleepy domain for lawyers and a few publishers; it was now at the center of crucial Supreme Court battles over things like term extensions and services like Grokster.

On June 1, the Librarian of Congress—who oversees the Copyright Office—selected Maria Pallante as the new Register of Copyrights. Pallante, who had spent five months as the Acting Register after Peters stepped down, has a long history working on behalf of writers (Authors Guild, National Writers Union), museums (Guggenheim Museums), and the government. She's the kind of person happy to show up at Public Knowledge "fair use" events and extol the virtues of copyright's exceptions—and who has no trouble telling Congress to support felony streaming penalties.

Pallante is no zealot, and has to date garnered praise from all sides—but that's much easier to do before the truly divisive decisions need to be made.

When we spoke recently, I asked Pallante about her background and interest in copyright, but also about her views of the DMCA, fair use, and "stronger" copyright. She made clear that exceptions are important and smart copyright law is key—but that more enforcement is what the US needs most right now.

Pallante on copyright

Ars: Copyright has clearly grabbed the public interest in a way that would have been inconceivable 20 years ago. Does all this extra attention complicate life at the Copyright Office?

Pallante: I'm thrilled that more people care about copyright. I graduated from law school in 1990 and copyright was kind of a growing field then—environmental law was also newly hot—and it's only gotten bigger and better since. I do look at it sometimes with amusement; the field I obviously fell in love with right off the bat has gained so much attention.

But I think it's great that the public is interested. It presents a lot of challenges but a lot of opportunities. I would like to see people respect copyright, I would like to see them know how copyright works, what it means for them in their daily lives.

It's one of those life skills now, right? When you graduate from high school or college, you should know how to read a map, you should know how to use GPS, you should know a little bit about copyright. If you are somebody who is going to be in a field where you will encounter copyrighted materials all the time, you should know more. If you're going to be an artist or musician and you're getting a red-hot degree in the performing arts, you should know a lot. And I don't think that's quite the case—I don't think it's been built into curricula.

Ars: You talked about your love for copyright and for individual creators. Where did that come from?

Pallante: I worked for the Authors Guild almost right out of law school, and also for the National Writers Union. Those organizations are devoted to copyright and First Amendment issues of authors. In working in those places, you partner with a lot of other like-minded organizations on amicus [friend of the court] briefs, for example, and so we worked with photographers' organizations, songwriters, and all similarly situated groups.

For me, there's nothing quite the same as representing the individual author for whom copyright is supposed to provide a signal that we are a nation that believes in culture and creativity so much that we're going to provide an atmosphere where you can devote your life to that kind of activity. That work will always stay with me.

I do think that the Copyright Office should have close relationships with groups like that; I also realize that not everyone who is an author, broadly defined, is a member of an association. It's almost ironic sometimes, because I think people often go into creative jobs because they're not people that want to be part of a larger company, for example, then you try to organize them and get one group to speak for everyone... [laughter]

Ars: Let me ask you about a few policy questions that you will be involved in. The first is the DMCA's triennial rulemaking in which your office considers various limitations to anti-circumvention rules. The rulemakings so far haven't seemed to produce many truly useful, broad-based exceptions—which wasn't necessarily the point—but they did show us this vision of a world in which rightsholders want people to point a video camera at a screen in order to take advantage of fair use rights. From the consumer perspective, then, the whole process seemed a bit less helpful than some hoped it would be. Has the rulemaking process been worthwhile?

Pallante: Anytime you're talking about a limitation or exception, it's not supposed to be broad—it's an exception. So I take your point that the fact patterns and the specific rulings have been very narrow, but I think some people would argue that this is the point. THE DMCA was very innovative in its day. The entire goal was to make e-commerce function, but it starts from the premise that copyright compliance is essential. The triennial rulemaking provides a process by which individuals can make a case for circumvention in narrow instances. Whether the rulemaking is successful every three years in large part depends on the needs and persuasion of those who participate.

Copyright users naturally think in terms of exceptions. But whether exceptions are useful—that is, they can be extrapolated to mean something to the business or the creator community—is a complex question. Sometimes it can go either way. You can say, look, people are frustrated because copyright is hard. You can look at this and say that people need more exceptions, or you can conclude they need better licensing models—they need to be able to license works in a cost-effective and efficient manner. But certainly if we can combine all of these elements—effective licensing, appropriate exceptions to copyright, and appropriate exceptions to circumvention—it means things are working well. That's not only good for the marketplace, it's also good for innovation and the broader copyright system.

If there isn't effective enforcement possibility, then there is no meaningful exclusive right and then copyright doesn't work.

Ars: You've testified a bit about the PROTECT IP Act and about making unauthorized online streaming a felony. Is what the US needs tougher enforcement/"stronger" rights—or does it need to balance enforcement with limitations in other areas? What do we need most right now?

Pallante: Both. The law needs to keep pace with technology. There's no point in talking about broader copyright policy if exclusive rights can't be enforced. So when I look at the enforcement issues that are before Congress today, what I see are lots of questions about what kinds of tools prosecutors should have available to them to use at their discretion. That's a bit different than what you just said—that illegal streaming should be a felony. Not always—but yes, sometimes it should be. Of course a prosecutor should have that tool in his arsenal.

I always start with the enforcement issues online because if there isn't effective enforcement possibility, then there is no meaningful exclusive right and then copyright doesn't work. Once you ensure that that's the case, it is also true that exceptions and limitations cannot remain static. We have to update those, too. If you're suggesting—you didn't say this, but I may have heard it in between questions—that we focus too much on enforcement and not enough on limitations or exceptions—that may be a fair question. I can tell you that the Copyright Office has worked tirelessly on orphan works and library exceptions in the last four to six years, so there are a lot of people here that recognize that need.

Ars: I know that the Copyright Office has been quite concerned about orphan works and that you have specifically spoken about fair use quite a bit, so I didn't mean to imply that there's no interest in such things at the Copyright Office. But as someone who hears more from consumers, there's a perception that exclusive rights only move in one direction—stronger—and that we may never be able to get to a point where people respect copyright through increased enforcement of ever-more-rigorous rights.

Pallante: Yes, that's a different question, and a critical one for the Copyright Office—respect for copyright. How do you have an effective message and vision for copyright if people keep running into it in negative ways?

The frustration, though, is: do they really need exceptions? Do they really need fair use? Or is that just more convenient? When we talk about this issue, there are people who mean that the whole marketplace needs help; there are others who want to do away with copyright and who think that any inconvenience means the system isn't working and the use should be fair.

We need to do a good job of conveying that there are legitimate questions about the application of exceptions and limitations in the online environment, and they're important. They're important because we are a democracy, and we have a dance with the First Amendment that's extremely important when it comes to copyright.

Unfortunately, I start with enforcement because, if you don't have exclusive rights in the first place, you can't get to the other questions.

We have a dance with the First Amendment that's extremely important when it comes to copyright.

Ars: Something that was hugely controversial under your predecessor and that went all the way to the Supreme Court was retroactive copyright term extensions. Could you, in theory, support future legislation that might have the same approach to extending existing rights?

Pallante: That's a very difficult question without knowing the specific fact pattern. I'm not trying to dodge a question, but everything we do deals with layers of weeds and very fine hairs and splitting hairs, so I would need to have a bill in front of me. I'm very interested in hearing from everyone on these hard issues, because they're hard and they affect an awful lot of people.

Ars: Let's talk about fair use. You said in the past that the ambiguity of the current "four-factor test" is more than made up for by the flexibility that it offers. I've read some law professors recently who argue that the current test is so ambiguous, however, that judges can use it to reach any preconceived outcome they want. Is the test tight enough to be useful to people who want to think about fair use before finding themselves in a federal court case?

Pallante: It depends where you are. If you're looking for certainty, fair use is not going to help you sleep at night. However, I think the four factors are on the money in that they have stood the test of time and applied to all kinds of genres, all kinds of works, and all kinds of situations.

The frustration with fair use comes back to what we were just talking about: today, more people need to navigate it. If you're not an expert, that can be very challenging. Rightsholders don't always make it easy because the licensing models and information that they offer are not always understandable, easy to navigate, or affordable. People get very frustrated, so they want the policy that says, "Yes, you can do this" or "No, you can't do that." And when those people aren't copyright lawyers, of course they're frustrated.

But it would be shortsighted to have a fair use policy that IS so specific that it serves the short-term goals of people that want to do short-term things. The more you specify the facts, though, the more you lose the benefits of the law.